The Role of the EAEU Court's Advisory Opinions in Development of the Eurasian Economic Union's Competition Law

Abstract

The present article analyses the general principles and rules of competition stipulated in the Treaty on the Eurasian Economic Union in the light of the EAEU Court case law. The authors review the types of policies implemented within the EAEU, explain the difference between the general principles and rules of competition and emphasize the practical importance of the Court’s conclusion on the direct effect and direct applicability of the general rules of competition. A significant part of the article is devoted to issues addressed in the Court’s case law on the interaction between EAEU competition law and the antitrust legislation of the member states, as well as to the competence delimitation between the Eurasian Economic Commission and the national competition authorities. According to the authors, despite the fact that the provisions of the Treaty are aimed at excluding cases in which investigation is to be carried out by national authorities and the Commission simultaneously, the novelty of regulation and the complexity of the transboundary markets criteria made it necessary for the Court to foresee a scenario where parallel investigations will not be terminated and will result in decisions by both bodies. The solution to the problem was found in the entrenchment of the ne bis in idem principle in the advisory opinion of 18 June 2019. In terms of distribution of powers between supranational and national levels of legal regulation, the Court’s opinion on restraint of prohibited coordination of economic activities, stipulated in the advisory opinion of 17 December 2018, merits consideration. The Commission shall have competence to deal with this violation when the coordination of economic activities has an adverse effect on competition on a transboundary market. In the context of the substantive matters study, the authors take a close look at the position of the Court, set out in the Advisory opinion of 4 April 2017, related to the right of the member states to establish additional criteria for admissibility of “vertical” agreements in national legislation. Taking into account the influence of the law of the European Union on the development of EAEU competition law the authors undertake a comparative analysis of the EAEU Court’s advisory opinions with the case law of the Court of Justice of the EU, underlining the main similarities and differences.